PLD 1950 Dacca 60 (PLP)

The allegations made were sufficient to attract the provisions of O. XLVII, rule 1 and to enable the applicant to maintain her application under the said rule. 33 C.W.N. 572 relied on 33 C. W. N. 883 Distinguished; 26 C.W.N. 69 and 13 C. W. N. 1197 ref. Jitendra Kumar Sen Gupta and Motilal Acharayya, for Appellant. Upendra Kumar Roy,‑and Negendra Chandra Choudhary for Respondents. Suit No. 313 of 1942 was instituted by the plaintiff for a declaration that on the death of his father Niresh Chandra Roy Chaudhary, on 19th January 1939, the plaintiff was entitled to a moiety share and not to a one‑third or the maintenance allowance payable by the Court of Wards and that defendant No. 1, his step‑mother, was liable to refund what she had received as a one‑third co‑sharer in the said allowance. The trial Court decreed the suit and defendant No. 1 thereupon preferred Appeal No. 1 of 1945. On the date fixed for the appearance of the respondents, that is, on 10th February 1945, a petition of compromise was filed purporting to have been executed by defendant No. I appellant and the plaintiff‑respondent, and the appeal was disposed of in accordance with the terms of the said petition. Defendant No. 1 thereafter filed an application under O. XLVII, rule 1, Civil Procedure Code for setting aside the compromise decree and reviving the appeal (Miscellaneous Judicial Case No. 43 of 1945. The Appellate Court having granted the prayer of defendant No. 1 by order, dated 10th April 1945, the plaintiff preferred the present , appeal. It was urged before me by the learned Advocate for the appellant that the application for review under O. XLVII, rule 1 was misconceived and was not maintainable, and that the proper course to follow was to institute a suit to set aside the compromise decree. Reliance in this connection was placed upon the decision in the case of J C. Galstaun v. Kumar Pramathanath Roy reported in 33 C W N

883. On the other band, it was contended by the learned Advocate for the respondents that in cases where there was an allegation of fraud which could not be discovered before the decree, even after the exercise of due diligence, there may be a new and important matter within the meaning of O. XLVII, rule 1, Civil Procedure Code and reliance in support was placed upon the decision in the case of Khitish Chandra Chatterjee v. Nagendra Nath Mandal reported in 33 C W N

572. The case cited by the learned Advocate for the appellant seems to me to be distinguishable. There the fraud alleged was considered from. the point of view whether or not it constituted " any other sufficient reason " within the meaning of O. XLVII, rule 1 Civil Procedure Code, as explained in the decision in the case of Chhaju Ram v. Neki, reported in 26 C W N

697. In this case of J. C. Galstaun 33 C W N 883, referring to the expression 'any other sufficient reasons' their Lordship observed: " That these words were not unlimited and must be taken to point to a reason which is sufficient on the grounds at least analogous to those mentioned in the rule." And regard being had to the nature of the allegation made, viz., that there was some unauthorised alteration in the petition of com promise, they held that the application of review was not competent. The observation, therefore, made in that case in reference to the maintainability of an application for review of judgment on the ground of discovery of new and important matter, appears to me to be in the nature of obiter dictum. The case of Khitish Chandra Chatterjee v. Nagendra Naih Mandal A I R 1929 Cal. 513, cited by the respondent appears to me to be more in point and a direct decision as regards the question raised. The real point in a case of this nature seems to me to he whether the read was a new and important matter which was not within the knowledge of the applicant or could not be produced by him at the time oft the decree even after the exercise of the diligence. The grounds upon which the application is based have, therefore, to be looked. into in the present case and doing so I find, that it has beet clearly stated in the application, that the applicant was a Purdanashin lady to whom the terms of the compromise were not explained, who did not understand the effect of the document, and who came to know and realised her correct position after the execution of the document and the passing of the compromise decree. The allegations made are in my opinion sufficient to attract the provisions of O. XLVII, rule 1 and to enable the applicant to maintain her application under the said rule, though it may be that in some cases the better procedure would be to the a regular suit. See in this connection the case of Mst. Gulab Koer v. Baashah Bahadur, reported in 13 C W N 1197. (After considering the evidence, the judgment proceeded). Considering the evidence as a whole, I am unable to say that the Judge has committed any error in drawing the inference which he has arrived at on the evidence in the record. I, accordingly, dismiss this appeal but make no order as to costs. No order need be made on the application under section 115, Civil Procedure Code, in view of this judgment. K.M.A./A.H. Appeal dismissed.